May 2017 update

Contents

Website

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Case law

Deprivation of liberty case.SSJ v MM; Welsh Ministers v PJ [2017] EWCA Civ 194, [2017] MHLO 16 — (1) MM wanted to be conditionally discharged into circumstances which would meet the objective component of Article 5 deprivation of liberty. The Court of Appeal decided that: (a) the tribunal has no power to impose a condition that is an objective deprivation of liberty; (b) a general condition of compliance with a care plan would be an impermissible circumvention of this jurisdictional limitation; (c) purported consent, even if valid, could not provide the tribunal with jurisdiction. (2) PJ argued that his CTO should be discharged as it could not lawfully authorise his deprivation of liberty. The Court of Appeal decided that a CTO provides the power to provide for a lesser restriction of movement than detention in hospital which may nevertheless be an objective deprivation of liberty provided it is used for the specific purposes set out in the CTO scheme.

DOLS funding case.R (Liverpool City Council) v SSH [2017] EWHC 986 (Admin), [2017] MHLO 15 — "By these proceedings, four English councils seek to challenge what they describe as the government's 'ongoing failure to provide full, or even adequate, funding for local authorities in England to implement the deprivation of liberty regime'. They suggest that the financial shortfall suffered by councils across the country generally is somewhere between one third of a billion pounds and two thirds of a billion pounds each year and claim that the Government must meet that shortfall. They seek a declaration that, by his failure to meet those costs, the Secretary of State for Health has created an unacceptable risk of illegality and is in breach of a policy known as the 'New Burdens Doctrine'. They seek a mandatory order requiring the Secretary of State of Health to remove the 'unacceptable risk of illegality' and to comply with that doctrine." s

Negligence case.ABC v St George's Healthcare NHS Trust & Ors [2017] EWCA Civ 336, [2017] MHLO 19 — "The Claimant alleges that the particular circumstances of her case mean that the Defendants owed her a duty of care. She says it was critical that she should be informed of her father's diagnosis, firstly presumed and subsequently confirmed, in the light of her pregnancy. This was her first and only child. It was all along known that she would be a single mother with sole responsibility for the upbringing of the child. If informed of her father's diagnosis she would have sought to be tested for Huntington's Disease. If her own diagnosis was confirmed, she would have terminated the pregnancy rather than run the risk that her child might in due course be dependent on a seriously ill single parent or become an orphan, and the risk that in due course her child might inherit the disease. Her diagnosis would have precluded any subsequent pregnancy. The claim therefore includes a 'wrongful birth' claim in respect of the child. The child has an accepted risk of 50 per cent of contracting the disease, but it is not yet possible to reach a diagnosis in her case, one way or another."

Extradition case.Korcala v Polish Judicial Authority [2017] EWHC 167 (Admin), [2017] MHLO 18 — "This extradition appeal involves essentially two questions: (i) If a person has been found incapable of committing a criminal offence in the country in which he was tried because of mental illness, but has been ordered to be detained indefinitely in a mental hospital, has he been 'convicted' for the purposes of Part 1 of the Extradition Act 2003 ('EA')? (ii) If that person then flees the mental hospital and is wanted for a prosecution for that offence, would there be an equivalent offence if the events had taken place in England so that the double criminality requirement is satisfied and the offence qualifies as an 'extradition offence'?"

Immigration detention case.ARF v SSHD [2017] EWHC 10 (QB), [2017] MHLO 17 — "In this case the Claimant claims damages for unlawful detention between 31 August 2011 and 22 January 2014 (save for a period when she was in prison on remand between 25 October 2011 and 15 December 2011). She was detained by the Defendant under section 2 (2) and (3) of Schedule 3 to the Immigration Act 1971 throughout this period pending the making and enforcement of a deportation order. She was detained in two psychiatric facilities following her transfer pursuant to section 48 of the Mental Health Act 1983 between 11 October 2012 and 22 January 2014. Although initially disputed, the Defendant now accepts that when she was detained under the mental health legislation the Claimant was simultaneously detained under her immigration powers. The Claimant argues that her total period of detention was unlawful and puts forward four bases for this contention. Firstly, at common law pursuant to the Hardial Singh principles it is argued that: she was detained when there was no reasonable prospect of her deportation; she was detained for longer than necessary; and no steps were taken to expedite her deportation. Secondly, it is argued that there was a public law error in the failure to apply policy properly or at all under Chapter 55.10 (Enforcement Instructions and Guidance) primarily because the Claimant was suffering from a serious mental illness, but also because there was evidence that she had been both trafficked and tortured and so should have been considered suitable for detention only in very exceptional circumstances. Thirdly, it is argued that the circumstances of her detention whilst suffering severe mental illness gave rise to breaches of the Claimant's human rights under Articles 3 and 8. Finally, it is argued that the report of trafficking was not investigated timeously or at all such as to give rise to a breach of Article 4."

Mental Health Treatment Bill proposal

Mental Health Treatment Bill. The Prime Minister has stated that the Mental Health Act 1983 will be repealed following a Conservative victory in the June 2017 general election. See press articles for details. See Mental Health Treatment Bill

Felicity Auer and Joanna Dean, 'Mental health: focus' (Legal Action, May 2017, p34). This article (written before the Conservative party's policy announcement) proposes wide-ranging reforms to the MHA 1983 "to bring it into the 21st century and in line with international human rights law" under the following headings: mental disorder; nearest relative; involuntary treatment; involuntary detention; fusion of mental health law and mental capacity law. See Mental Health Treatment Bill

Mental Health Tribunal

MHT office closure. The following is the text of an email dated 18/5/17 in relation to an office closure: "Dear All, Please be aware that due to a burst water pipe the Leicester office is closed. We do not have access to the building and have staff travelling to other locations within the City and County. We have not been able to divert the telephones so are unable to take calls. Urgent work will take priority. All emails will be monitored but there may be some delays in providing a response. At this point in time I have no idea when the office will reopen. I will provide further updates as they become available. Thank you for your continued patience and support. Karen Early, Operations Manager, Her Majesty's Courts and Tribunals Service". See Mental Health Tribunal

Karen Early, 'Mental Health Tribunal Bulletin' (HMCTS, 22/5/17). The following is the text of this bulletin: "An important message regarding the administration office: Further to last week’s message, I confirm that the Leicester office remains severely affected by a burst water pipe with some floors remaining closed. Staff have been relocated to alternative floors within the building and urgent work will continue to take priority whilst we recover from the disruption. All inboxes will be monitored but there still may be some delays in providing a response. We are now able to take calls on our usual number - 0300 123 2201 – but would ask that this is for urgent matters only. It is likely that this situation will remain for several weeks. I would like to thank you for your continued patience and support during this difficult time." See Mental Health Tribunal

Edge Training: Deprivation of liberty in children and young people - Sheffield, 29/6/17 — This course aims to update staff working with children, young people and those in transition with the latest case law and developments in relation to deprivation of liberty. The course will consider these developments and their impact on practice. It examines the Supreme Court ruling on deprivation of liberty and considers practical issues in its application for children and young people. Speaker: Dawn Revell. Cost: £130 plus VAT (£156). See flyer for further details and booking information.

Edge Training: MH Assessors Annual Refresher Course - London, 14/7/17 — This refresher course has been designed to meet the needs of DOLS Mental Health Assessors. It will cover key topics that cause uncertainty or dilemmas for MH Assessors and go over the main basic requirements of this challenging role. Common Mental Health Act and DOLS interface issues will also be addressed such as the law around the provision of mental health treatment under DOLS. Speaker: Aasya Mughal. Price: £180 + VAT (£216). See flyer for further information and booking details.

Edge Training: Best Interests Assessors Legal Update Course - London, 10/7/17 — This course aims to provide an essential update on case law in relation to the role of the BIA. Learning outcomes: consider the latest DoLS news, research and guidance; examine the latest case law relevant to DoLS and the BIA role; reflect on how the information covered affects BIA practice. Speaker: Aasya Mughal. Cost: £130 plus VAT. See flyer for further details and booking information

Edge Training: DOLS: a new beginning? - London, 26/6/17 — This half-day course aims to provide a detailed overview and analysis of the Law Commission's recent proposals and draft legislation to replace DOLS with the Liberty Protection Safeguards. It will consider the potential impact of the proposals on individuals, professionals and organisations. There are separate morning (0930-1230) and afternoon (1330-1630) sessions. Speaker: Steven Richards. Cost: £65 + VAT (£78). See flyer for further details and booking information.

Edge Training: Best Interests Assessors Report Writing Course - London, 23/6/17 — This course is targeted specifically at qualified Best Interests Assessors (BIAs) and aims to provide them with the knowledge and skills needed to ensure robust and legally defensible assessments under the Deprivation of Liberty Safeguarding (DOLS). Speaker: Piers McNeil. Cost: £130 + VAT (£156). See flyer for further details and booking information.

Edge Training: Consent, the Mental Capacity Act and Medical Treatment Conference - London, 9/6/17 — This one-day conference will provide professionals with essential information and guidance on the legislation and case law surrounding consent and the Mental Capacity Act. It will consider the practical application of this in healthcare settings, to enable compliance with the law to protect both staff and patients. Speakers: Mr Justice Charles, Steven Richards, Alex Ruck Keene, Dr Shahid Dadabhoy, and Aasya Mughal. Cost: £125 plus VAT. See flyer for further details and booking information.

MHLA - Reaccreditation course - London, 5/6/17 — The Mental Health Lawyers Association's refresher and re-accreditation course is suitable for those seeking re-accreditation and will also be of interest to anyone wishing to further their knowledge of mental health law and practice. Price: £150 (MHLA members); £195 (non-members). See MHLA website for further information and to book online.

BIHR: Mental Health, Mental Capacity and Human Rights: cross-sector collaboration - Blackburn, 10/5/17 — The British Institute of Human Rights are holding an event for people working on mental health or mental capacity in the public or voluntary and community sectors to think about how human rights can help them to work collaboratively to improve services locally. Events are being held in London, Blackburn, Exeter, Norwich and Brighton. Time: 1330-1630. Cost: free. See BIHR website for further details and booking information. See the Events page for details of the events in the other towns.

York Law School: 'Nothing about us without us' - York, 26/5/17 — York Law School holding a half-day symposium on the ethical and methodological isuses in researching with, and working co-productively with people whose disability/illness means they lack the capacity to consent. Speakers: Professor Dan Goodley, Gilllian Loomes, Elaine James, Julie Latchem. Time: 1300 to 1700. Cost: free. See Eventbrite website for further details and booking information. See Events